Court urges change in gay parenthood policies

A seven-member panel of the High Court of Justice on Sunday pressed the state to change the process for recognizing the homosexual parenthood of a child born through the process of surrogate motherhood.

The court did not actually issue a formal ruling, but aggressively pushed the state toward answering over the next month if it would be willing to change its policies based on suggestions from petitioners and the court.

Although the state expressed certain formal reservations throughout the hearing, it did not contradict most of the petitioners’ fundamental arguments about the alleged inefficiency and unfairness of the current process.

Currently, the man from the homosexual couple who is the child’s biological father must pass a paternity test in which a sample of his genetic tissue is checked to prove he is the biological father.

Subsequently, the second man in the couple – who has no biological relation to the child but was jointly involved in all of the decisions and who expects to be equally involved in parenting – must go through a lengthy process to legally adopt the child.

One of the two homosexual couples who petitioned the High Court said that it had been through the process once before and that it had taken three years.

The petitioners are asking the court to alter the process such that it conforms to those in several Western countries, such as Canada, where an order is issued declaring the homosexual couple as parents after one of the men in the couple passes a paternity test (even if administered overseas).

The Canadian system has no requirements for additional adoption procedures or local paternity tests.

There is a gag order on the petitioners’ names to protect their identities and to protect the children involved, and the hearing itself was held behind closed doors.

Both couples found surrogate mothers in the United States, where the biological fathers have already passed paternity tests.

One of the couples asked the court to recognize both of the two partners as the child’s parents without undergoing a paternity test in Israel.

The couple stated that the American medical documents and birth certificates in its possession should be sufficient for automatic recognition of their status as the child’s parents in Israel.

The male child in question is already two-and-a-half years old.

The couple also has a five-year-old daughter who was born through an American surrogate mother.

In the case of the daughter, the couple did submit to the paternity test and went through the long adoption approval process.

The court’s suggestions to the state for streamlining the process for homosexual couples included replacing the adoption procedure with a process for recognition as parents, similar to the Canadian system.

Even if Israel does not fully use the Canadian model, the justices seemed to indicate that the prerequisites for completing a parental recognition process would be inherently simpler and quicker than the adoption procedure.

Another suggestion was recognizing paternity tests administered in the foreign country where the surrogate motherhood process is occurring.

Currently, Israel requires a local paternity test.

It was somewhat unusual for the court to express a clear policy preference to the state, yet give it more time to alter its position, rather than openly order the state to change.

The state, for its part, while not disagreeing fundamentally with the unfairness and inefficiency of the current situation, said that experts, including those cited in a government- sponsored report that surveyed a number of cutting-edge medical issues, recommended the state refrain from any major change in policy in this area absent new legislation from the Knesset.

Essentially, the state argued that the social issues at stake are too thorny for a major change in policy based on a mere executive decision. The state highly preferred formal action from the legislative branch so that all voices on the issue could be heard.

The court’s solution of pressing the state with giving an official ruling suggested that it sympathized with the state’s predicament, but was unconvinced that it could wait for legislation if fundamental rights were being violated.